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Pilmenstein v. Wallace.

2021 COA 59. No. 19CA2051. Employment Law—Employee Rest Periods—Colorado Minimum Wage Orders—Minimum Wage Act—Private Right of Action—Monetary Damages—Willful Violation—Accrual Date—Class Action Certification.

April 29, 2021


Devereux Cleo Wallace (Devereux) provides residential and outpatient mental health services to children and adolescents with psychiatric disorders. Pilmenstein worked for Devereux as one of its direct care providers (DCPs). Pilmenstein worked shifts as long as 12 consecutive hours, but Devereux did not provide her or other DCPs with compensated duty-free rest periods. Pilmenstein filed a class action lawsuit against Devereux to recover compensation for the rest periods she asserted she was entitled to under Colorado law.

Pilmenstein and Devereux each filed summary judgment motions, which the district court denied. But the court granted Pilmenstein’s motion for class action certification, which effectively applied a three-year statute of limitations to the action. After these rulings, the parties jointly asked the court to decide several disputed legal questions under CRCP 56(h). In its ruling on the motion, the court concluded that employees have a private right of action to recover monetary damages if their employer fails to provide them with rest periods in violation of Colorado Minimum Wage Orders (MWOs). The court noted, however, that it could not determine as a matter of law whether Devereux acted willfully by failing to provide rest periods and left that issue for the finder of fact. To expedite an appeal, the parties jointly moved for entry of a stipulated final judgment to include an award of damages to Pilmenstein and the class members, subject to Devereux’s right to appeal. The court entered a final judgment as requested.

On appeal, Devereux argued that the district court erred by ruling that it was required to comply with the rest period requirements in the applicable MWOs because MWOs, which are administrative regulations, and the opinion letters, which are the agency’s interpretations of those regulations, stated that companies such as Devereux were exempt from the MWOs. Devereux did not dispute that the MWOs unambiguously required employers in the health and medical industry to provide their employees with 10-minute compensated and duty-free rest periods for every four-hour period the employee worked. Because the MWOs were unambiguous, the Court of Appeals rejected language in the opinion letters to the contrary. Accordingly, the district court did not err.

Devereux also argued that the district court erred by ruling that an employer’s failure to provide the required rest periods can give rise to a private action for monetary damages. The MWOs are regulations that implement several statutes, including the Colorado Wage Claim Act and the Colorado Minimum Wage Act, both of which authorize private rights of action to recover monetary damages. The Minimum Wage Act and the MWOs authorize a private right of action for rest period violations where the employee seeks to recover the minimum wage for required rest periods that were not provided, and this matter is a minimum wage case. Therefore, the district court did not err.

Devereux further argued that the district court erred by declining to determine that Devereux did not act willfully as a matter of law, which would have shortened the statute of limitations. Whether an employer acted willfully by failing to pay wages is a mixed question of fact and law. Here, there are disputed issues of material fact as to whether Devereux acted willfully in not providing its DCPs with rest periods. Therefore, the district court properly declined to decide the willfulness issue on summary judgment.

Devereux also contended that the district court applied an incorrect accrual date in certifying the class. However, the facts relevant to the accrual date are undisputed, and the court did not err.

The judgment was affirmed and the case was remanded, with instructions, for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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